Texas Court of Criminal Appeals
Esparza v. State
05/13/09 : Cite No. PD-1616-07 : DNA Testing
Does a sexual assault victim’s assertion that she had consensual sex with another man two days before she was sexually assaulted by the defendant preclude the defendant, during the trial, from seeking DNA testing of material in the rape kit under CCP Chapter 64?
No. The victim’s prior sexual encounter did not preclude the defendant from establishing that the DNA testing could have yielded exculpatory results. In a fact-intensive opinion the Court compared to Smith v.Slate (165 S.W.3d 361 (Tex. Crim. App. 2005)), the Court ruled that there was no scientific evidence supporting the contention that biological material deposited two days before the sexual assault would still be present in the victim when the rape kit was conducted.
It still seems bizarre for the CCA to say that the credible identification of the defendant by two eyewitnesses is meaningless in evaluating the weight that DNA results might have on a case. However, the CCA is only saying that a DNA test is warranted, not that the result is ultimately meaningful as to guilt or innocence.
Texas Courts of Appeals
Gutierrez v. State – 11th COA
05/07/09 : Cite No. 11-07-00322-CR : Time Credit
Upon the defendant’s guilty plea to forgery and assessment of two years in state jail and a $500 fine, did the trial court correctly refuse to grant him credit for the time he had served in a county jail?
Yes. The limiting language in Code of Criminal Procedure art. 42.12 §15(d) that the trial court may not require a defendant to submit to both the term of commitment authorized by the subsection and a term of confinement in the county jail under §12 refers to situations where the trial court has ordered confinement in a state jail facility at the beginning of the community supervision term.
Wow. This shows one very patient trial judge. The defendant got the benefit of every doubt, amendment and program available in the system. This is your escalating sanctions example for the Legislature. And the failed probationer still wants to complain. Fortunately, the court of appeals applies a very reasonable interpretation of the law to prevent credit for time served in county jail on amendments.
Jackson v. State – 14th COA
05/12/09 : Cite No. 14-08-00369-CR : Testimony of Previous Incarcerations
In the defendant’s trial for interference with an emergency telephone call, was he entitled to a mistrial when his former girlfriend made reference during her testimony to the defendant’s two previous incarcerations?
No. The disclosures of the defendant’s two previous incarcerations were not calculated to inflame the minds of the jury, nor were they so damaging as to make it impossible to remove the harmful impression from the jurors’ minds. In the first case, the trial court’s instruction directing the jury to disregard the references adequately addressed the defendant’s objection. In the second, the judge gave an appropriate curative instruction in response to the defendant’s second objection.
Frankly, the first mention by the victim of the defendant’s prior incarceration is relevant. After all, the victim was repeating the defendant’s words at the scene of the crime: "Bitch, you trying to send me back to jail or something?" That is very relevant to proving the offense of interfering with a 911 call. As for the second mention ("…I knew he had gotten out of prison on a 13-year sentence…"), well, the judge did instruct the jury to disregard. And the victim was saying she didn’t want him to go back to jail. All in all, a great reminder of how the 911 interference charge is sometimes better than the assault charge.
Smith v. State – 14th COA
05/12/09 : Cite No. 14-07-00966-CR : Probation Revocation Hearings
During the defendant’s sentencing for a violating his community supervision, did the trial court correctly reopen the adjudication hearing and find the allegations of felony aggravated robbery to be true?
No. The trial court heard testimony regarding the defendant’s numerous community supervision violations and evidence regarding the current charge for armed robbery. Both the State and the defense rested and delivered closing arguments. At this point, the argument had concluded. In allowing the reopening the trial court violated Code of Criminal Procedure art. 36.02.
Justice Frost wrote that the court should not reach the merits of the defendant’s only issue because he failed to preserve his complaint for appellate review. However, even without this waiver, there would be no error because Code of Criminal Procedure art. 36.02 does not apply to probation revocation hearings.
Why in the world did the trial court re-open for guilt? The victim of the new crime of robbery could have provided evidence to the judge through the upcoming PSI or during a punishment hearing. Have to wonder if the victim was making a ruckus about not getting to testify. But it was all harmless.
Texas Attorney General Opinions
Opinion for The Honorable Jeff Wentworth
05/12/2009 : Opinion No. GA-0714 : Collection Contracts
May a county contract with a private firm for the collection of delinquent fines, fees and court costs arising from its justice, county, and district courts, or would such a contract interfere with or abrogate the elected prosecutor’s authority in relation to either the pending or adjudicated criminal cases referred to the private firm for collections assistance?
Yes, a county may enter into a private collections contract. Code of Criminal Procedure art. 103.0031, which authorizes a commissioners court to enter into a contract with a private attorney or a public or private vendor for collection services does not violate article V, §21 of the Texas Constitution by impermissibly depriving the criminal district attorney of the authority to prosecute suits by the state.
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